Tillotson v. City of Davenport

• Decision Date: 16 June 1942
• Docket Number: 45925.
• Citation: 4 N.W.2d 365,232 Iowa 44
• Parties: TILLOTSON v. CITY OF DAVENPORT.
• Court: Iowa Supreme Court

4 N.W.2d 365

232 Iowa 44

TILLOTSON v. CITY OF DAVENPORT.

No. 45925.

Supreme Court of Iowa

June 16, 1942

Edward A. Doerr, of Davenport, for appellant.

Waldo M. Wissler, of Davenport, for appellee.

STIGER Justice.

I. Appellant's first assignment is that the court erred in overruling its motion for a directed verdict on the ground plaintiff was contributorily negligent as a matter of law. Our conclusion is the court was right in overruling the motion.

Plaintiff was the only witness for defendant. Plaintiff's evidence is substantially as follows:

The walk in front of plaintiff's home was clear, but south of her home it was covered with ice and snow. Plaintiff slipped and fell on this walk on the evening of January 21 1941 and received the injuries for which she seeks damages. On January 17, 1941, three inches of snow fell. On January 21, the day of the accident, it had not been removed from said part of the sidewalk and was "tramped down, rough irregular and uneven."

In the afternoon of January 21, plaintiff safely used the walk in going down town and in returning to her home, at which time the temperature was forty-one degrees. She knew the walk was somewhat slippery. She testified: "In the afternoon I was going down town. I came down town and went back walking over this walk both times. At that time the snow and ice on this part of the walk was soft enough that my heel would sink down in it and in that way give me a footing."

About 9 o'clock in the evening she left her home "for a little fresh air and to exercise her dog." The dog was not on a leash. At this time the temperature was thirty-seven degrees. When she came to the place on the walk where there was snow and ice and walked about two or three feet thereon she noticed she was slipping. She thought that she would try and reach a telephone pole about five feet away and next to the curb. "I was walking kind of stiff-footed, like a person ordinarily does when he is on something slippery, kind of short steps and stiff-legged." She started toward the pole but before leaving the sidewalk she fell.

Apparently the walk was substantially as safe to travel over in the evening as it was in the afternoon, there being a negligible difference in temperature.

Plaintiff knew the city had spread ashes adjacent to the curb two days prior to the accident and there was another sidewalk free of snow that plaintiff could have used in taking her walk. She did not take this route because her neighbors objected to her dog. On cross-examination, she testified:

"Q. You went over that route which you knew to be dangerous, in lieu of the route which you knew to be safe and which would have served your purposes just as well? A. I wouldn't say the walk was dangerous or absolutely dangerous."

It is well settled that mere knowledge that a walk is dangerous, unsafe for travel, is not sufficient to establish contributory negligence though there is another way that is safe and convenient, and to defeat recovery it must appear that the traveler knew or as an ordinarily cautious person should have known that it was imprudent to use the walk. Templin v. City of Boone, 127 Iowa 91, 102 N.W. 789; Reynolds v. City of Centerville, 151 Iowa 19, 129 N.W. 949; Gibson v. City of Denison, 153 Iowa 320, 133 N.W. 712, 38 L.R.A., N.S., 644; Travers v. City of Emmetsburg, 190 Iowa 717, 180 N.W. 753; Lundy v. City of Ames, 202 Iowa 100, 209 N.W. 427; Franks v Sioux City, 229 Iowa 1097, 296 N.W. 224.

Though plaintiff knew the walk was defective, unless it was imprudent for her to use the sidewalk at the time in question she was not bound to take the safer way. We are of the opinion the danger was not so serious and plaintiff was not so indiscreet, so wanting in care and discretion, that it should be held that she was contributorily negligent as a matter of law. She had previously safely used this walk and it was in a condition at that time similar to its condition on the night of the accident. She thought that she could safely use the walk. She "had no idea of falling." In her attempt to avoid injury she was walking "like a person ordinarily does when he is on something slippery, kind of short steps and stifflegged." It cannot be said that plaintiff did not exercise care to avoid injury. The question of contributory negligence was properly submitted to the jury.

In Travers v. City of Emmetsburg, 190 Iowa 717, 180 N.W. 753, 754, the court said:

"She may have known that the way was icy and slippery, yet if she reasonably believed that by using care she could make the passage in safety she was not negligent.

"Again it is an established rule in this state that, when a city permits a defective street or walk to remain open and unbarricaded, mere knowledge of its general unsafe condition is not, in itself, sufficient to establish contributory negligence on part of one who has the right to use such street or walk. * * * Plaintiff testifies that when she found the way icy she walked slowly and carefully to avoid slipping, and in this she is not disputed."

In the case of Burke v. Town of Lawton, 207 Iowa 585, loc. cit. 590, 223 N.W. 397, loc. cit. 399, we stated:

"He was properly upon the sidewalk at the place in question in the course of his way home from his place of employment. It was early in the evening. He knew that the sidewalk was slippery. He thought he could pass safely. He attempted to avoid what he regarded as the more slippery place upon the walk. He walked slowly and with short quick steps in passing over the slippery surface. * * * Under the facts and circumstances, it was for the jury to determine whether or not the appellee was exercising the care and caution that an ordinarily prudent man would exercise under the circumstances. The case is clearly distinguishable in its facts from the Lundy case [202 Iowa 100, 209 N.W. 427]."

Appellant cites several cases which, because of dissimilar facts, do not control the decision in this case. Among the cited cases are Lundy v. City of Ames, supra, and Cratty v. City of Oskaloosa, infra. In each case the court stresses the fact that the plaintiff did not exercise any care to avoid his injury.

In Cratty v. City of Oskaloosa, 191 Iowa 282, on page 286, 182 N.W. 208, on page 209, the court said: "Plaintiff frankly admitted that he was not thinking of the walk; that he observed no care, and that he did nothing to avoid the danger that was in his path, although he knew of, and appreciated the dangerous character of the walk."

In Wells v. City of Oskaloosa, 212 Iowa 1095, 235 N.W. 322, cited by appellant, there was a substantial obstruction on the walk (not snow or ice) and plaintiff imprudently and unnecessarily tried to pass over it.

II. Appellant complains of the admission of certain evidence and alleges error in the instructions. Over objections of appellant, the court admitted in evidence Ordinance No. 44 which required occupants of buildings or the owners of unoccupied lots to keep the sidewalks clear of ice and snow and it was the duty of the Board of Public Works to clear the walks at the expense of the owner or occupant if the snow and ice were allowed to remain for a period of ten hours. Appellant objected to the admission of the ordinance in evidence because it was immaterial and for the further reason that its liability, if any, was based on the statutes of this state and not on the ordinance. The objection should have been sustained.

Instruction No. 17 set out the...